Can a Spouse Refuse a Divorce in Ontario?

Deciding to end a marriage is one of the most difficult life decisions that a person can make.

Some believe that obtaining a divorce has become too easy, and that the perceived simplicity of the divorce process has encouraged spouses to walk away from marriages that might, otherwise, have survived. The reality is, that most spouses struggle with the decision to divorce for years. And, contrary to popular misconceptions, it can be complex, time consuming, emotionally and financially depleting, and damaging to your children to divorce. The process is, most certainly, far from easy.

Others believe that there should be greater fluidity and openness in relation to “spousal” relationships. They are of the view the relationships, generally, last for a season, and spouses should not be entangled in complex legal constraints, or burdened with legal obligations, in order to leave a marriage. Increasingly, these people are opting out of marriage, and the legal consequences that flow from the institution.

Regardless of one’s view of marriage and divorce, when a marriage breaks down, more often than not, one party is ahead of the other in terms of his/her readiness to proceed. And in some cases, the wish to end the marriage comes as a complete surprise to one of the spouses. In these instances, the “left-behind” spouse is generally shell shocked – struggling to catch up, emotionally, legally and in all other regards.

When a spouse begins to consider divorce, the first logical questions are:  

1. Is there any hope for the marriage? and
2. If the marriage can’t be saved, how do we proceed in such a way as to ensure that the close of our marriage is as civil, fair, reasonable, child-centered, simple and cost effective as possible?

Informing Your Spouse that the Marriage is Over

The way in which the spouse who has decided to depart from the marriage informs the other of their decision is critical. It can make the difference between the possibility of reconciliation or an unaltered path to termination. Alternatively, it can make the difference between a civil and considered resolution of issues arising from the breakdown of the marriage or a war.

For guidance as to how to tell your spouse about a decision to end the marriage, please see: “How To Tell Your Spouse You Want a Divorce”

The Early Role of a Divorce Lawyer

Many believe that divorce lawyers are paid gladiators, who invite separation and promote a battle. This idea is diametrically opposed to the actual role of today’s divorce lawyer. It is critical to note that the obligation of a divorce lawyer is to assist their client in finding a civil, fair, cost, efficient and child-centered path to the resolution of their family law concerns. Their call to action arises only after a spouse has come to a decision that their marriage has irretrievably broken down.

The original drafters of our Divorce Act https://laws-lois.justice.gc.ca/eng/acts/d 3.4/fulltext.html considered a divorce lawyer’s obligation to seek to protect and preserve a marriage so significant, that they imposed a duty on lawyers acting in divorce proceedings to discuss with their client the possibility of a reconciliation, and to inform their client of marriage counselling or guidance facilities that might assist them to achieve a reconciliation. While this provision of the Divorce Act has since been repealed, its spirit in relation to the practice of most divorce lawyers remains.

Even though divorce lawyers invite their clients to think very seriously before proceeding to a divorce, experience shows that, once a spouse has reached the stage at which he or she has attended at the offices of a divorce lawyer, the likelihood that the marriage will, eventually, breakdown is high. This is so, even when the initial attendance is more exploratory in nature. In the event that the marriage ends, at the very least, the initial consultation will have provided a spouse with information and tools to make the divorce process kinder, gentler and more constructive.

So Can I Refuse Divorce or Separation?

There is a misconception, likely arising from television portrayals of divorce, that a spouse who is opposed to a divorce can simply refuse to sign the ‘divorce papers’. What does this mean? What are the ominously described divorce papers?

First, in the simplest analysis, there are two ways in which one can divorce. The first is by way of a negotiated settlement, which required the parties to communicate, cooperate and agree to a resolution. The second is by way a contested battle, which will generally end in the Courts, if the parties are unable to find a better means of resolution.

There are two key components to the resolution issues arising on the end of a marriage:

1. the granting of the simple divorce; and
2. the resolution of what are called “corollary issues.”

The granting of a divorce results in the legal termination of the spouse’s status as married partners. The corollary issues are all other issues that arise on the breakdown of a marriage, which may include:

1. the parties’ time-sharing with their children, if any;
2. child support;
3. spousal support;
4. protection orders;
5. property concerns, such as:
   • division of personal property (cars, household contents and the like);
   • treatment of the family home and any other real estate;
   • treatment of all other property, including pensions, businesses, savings, and the like;
6. tax issues; and
7. estate issues,

to name a few.

To finalize all issues arising from the breakdown of a marriage the spouses must:

1. resolve all of their corollary issues, by way of
   • a Separation Agreement, which is negotiated between the parties; or
   • a Court Order, which is the product of actions taken within the Court process; and
2. obtain a Divorce Order (to terminate their status as married spouses), by way of a Court Application; and

Generally speaking, it is best to resolve all corollary issues before one seeks a Divorce Order. This is so, because the granting of a Divorce Order can limit or impair a spouse’s ability to pursue subsequent claims in relation to corollary issues.

Refusing to Resolve Corollary Issues

As addressed above, corollary issues, such as time-sharing of the children, child support, protection orders, spousal support, and property division, can be resolved in 2 ways:

1. by negotiation of an agreement; or
2. by Court Order.

If agreeable terms of settlement can be reached outside of the Court context, they are generally captured in a contract called a Separation Agreement, which his signed by both parties. At times, one party will present to the other a draft Separation Agreement, as an invitation to settle on the terms included in the Agreement. That draft Agreement, or some version of it, may, eventually, be signed by both parties if, through negotiation and cooperation, the parties can fine tune and amend the Separation Agreement to agree upon all terms.

If one party is resistant to settlement of the corollary issues, either because they don’t like the terms being proposed or they simply don’t want to see the legal termination of the marriage progress, they can simply choose to refrain from communication, negotiation or the signing of any settlement documents.  However, this approach will, generally, simply delay the process. The bottom line is, if communication and cooperation between the parties fails, either party has the option to commence a Court Application. In the context of that Court Application, the Court has the ability to grant an Order in relation to corollary issues identified in the Court Application.

It is, almost always, superior to have a thoughtful and informed negotiation to settle corollary issues on terms that serve you, your spouse and your children the best. Those who have terms imposed upon them by a third-party stranger (a Judge), rarely obtain the kind of sophisticated, caring and considered terms of settlement achieved by those who engage in a respectful dialogue. Further, those who end up in Court, generally, foster a hateful and destructive mode of engagement, which haunts them for years or decades to come.

One should carefully consider whether one wants to reject a negotiated solution – because the costs of doing so may far outweigh the perceived benefits. The process required to resolve family law cases can diminish many of the participants’ most precious resources, including:

• financial resources,
• emotional wellness,
• time,
• goodwill, and
• the wellbeing of the parties’ children.

Family law issues are unlike most other legal issues in that the parties involved will often play a lifelong role in each other’s lives. They may share children. They may jointly attend those children’s graduations and weddings. They may have continuing financial support obligations to each other. They may have friends or in-laws in common. Because of these ties, it is generally profoundly beneficial to maintain as much goodwill and decency as is possible in the resolution of family law concerns.

As a rule, seeking to settle corollary issues by managing emotions, operating from a solution focused position and looking to the future is the very best course of action. If this path is not adopted, and one finds oneself in court, it is important to understand that under the Family Law Rules of Ontario https://www.google.com/search?client=firefox-b-d&q=family+law+rules ,the Court has many tools to compel cooperation with its process, and to punish those who seek to interfere with its primary objective. Its primary objective is defined under Rule 2(4) (5) and (6) of the Family Law Rules https://www.ontario.ca/laws/regulation/990114#BK9 , to include saving time and expense and helping the parties to settle all or part of their case.

So, is there a benefit to interfering with the settlement of corollary issues that outweighs the cost?

Almost certainly not. Particularly, as the Court has the authority to bring the issues to resolution, whether one party wants it or not.

Refusing a Divorce

As mentioned above, a claim for a divorce is just one of many claims arising from the breakdown of a marriage. The granting of a simple divorce results in the legal termination of the marriage. A claim for divorce must be made in a Court Application, and a Divorce Order must be granted by the Court. The party commencing the Court Application will serve the Application on the other, by way of a formal process of service.

So, can the receiving party simply refuse to “sign” “the papers” and, thereby, stymie the divorce? Quite the contrary.

A failure to respond to a Court Application for divorce in the time specified within the Application, entitles to the filing party to proceed to obtain an Order for divorce (on an uncontested basis). In the Application, a claim for divorce can be made in isolation, or along with, other claims for relief in relation to corollary issues (time-sharing with children, child support, spousal support, property division, and the like). If the party who is served wishes to oppose any claim identified in the Application, they must file a responding Court document, called an Answer.

In relation to a claim for divorce, the divorce may be claimed on one of the following grounds:

1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
2. the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
   • committed adultery, or
   • treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses,

pursuant to Section 8(1) of the Divorce Act.

If a spouse seeks to oppose a claim for divorce, they must be able to show that the claiming spouse has not met one of the required grounds for divorce. As noted above, this is not as simple as refusing to respond. This involves filing Court documents, incurring expense and advancing an argument in Court.

Should a spouse seek to oppose the claim for divorce, it is generally, harder to defend a claim for divorce based on the ground of having lived separate and apart for 1 year. To meet this ground, the claiming party must simply establish a clear date of separation and await the passage of time. It is important to note that, in certain circumstances, spouses can be deemed to be separate and apart while living under the same roof. It is important to note that one spouse’s decision that the marriage has irretrievably broken down can be sufficient to result in a finding of separation.

The other two grounds for divorce: (1) adultery and (2) cruelty, can be more readily opposed, if facts can be proven that undermine the basis for these claims.

It is never as simple as refusing to sign the “divorce papers.

Conclusion 

As with most things in life, when considering the handling of a divorce, one must ask oneself will the benefits obtained by taking a certain course of action outweigh the costs? When one is confronted with the possible end of their marriage, it is natural and reasonable to look for all options to repair and preserve that marriage. However, once one party has concluded that the marriage has irretrievably broken down and there is no possibility for reconciliation, the approach of the “left-behind” spouse should be prudently considered, with the assistance of a divorce lawyer.

The best advice would generally be to be kind to yourself, your children, your extended family and your pocketbook. Work with a skilled divorce lawyer to craft a settlement of your issues that best advances your interests, with the least depletion of your precious resources. Maintain as much goodwill as possible between you and your former spouse, for your own wellbeing and that of your children. Seek a divorce lawyer who promotes solutions, healing and restoration.

At Bair Family Law approach to Family Law is grounded in three key words:
(1) solutions (2) healing and (3) restoration.